Galveston, H. & S. A. Ry. Co. v. Garrett

• Decision Date: 05 December 1906
• Citation: 98 S.W. 932
• Parties: GALVESTON, H. & S. A. RY. CO. v. GARRETT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

98 S.W. 932

GALVESTON, H. & S. A. RY. CO. v. GARRETT.^*

Court of Civil Appeals of Texas.

December 5, 1906.

Rehearing Denied January 9, 1907.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by B. F. Garrett against the Galveston Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, Newton & Ward, and W. B. Teagarden, for appellant. Perry J. Lewis and H. C. Carter, for appellee.

NEILL, J.

This is an appeal from a judgment of $15,000 damages for personal injuries inflicted on the appellee through appellant's negligence. As the three first assignments of error require consideration of the evidence, our determination of them will constitute our conclusions of fact.

On the morning of July 5, 1903, while appellee was a fireman on one of appellant's trains and in the discharge of the duties of his employment, the train was wrecked between Seguin and Kingsbury by reason of a washout, and the tender fell upon appellee and injured him, in the manner hereinafter stated. After the evidence was introduced, the appellant's counsel requested the court to peremptorily instruct the jury to return a verdict in its favor. The refusal of the request is the subject of the first assignment of error. In view of the numerous decisions upon the subject, it is hardly necessary to say that, unless it appeared as a matter of law that appellant was guilty of none of the acts of negligence charged to have been the cause of appellee's injuries, the requested charge was properly refused. To determine this question we must ascertain as best we can, in the light of the evidence and our knowledge of conclusions formed by ordinary men—not of those who by position, or, perhaps, by natural endowment, have been raised above their ken, but the common, practical, everyday men, who do the world's work, control the affairs of men, and are constantly pushing or dragging this world of man to a higher civilization—whether any other conclusion can be reached by ordinary men than that no act of negligence charged by appellee against appellant has been shown; for, if this is the only conclusion that can be deduced, the charge should have been given, but, if ordinary men might reach different conclusions, the requested instruction was properly refused. A jury of 12 men and the trial judge have arrived at and registered by the verdict and judgment the conclusion that the appellant was guilty of some one or more of the acts of negligence alleged against it, and that such negligence was the proximate cause of appellee's injuries. Whatever may be said of a judge, it is safe to say that a jury is always made up of ordinary men. This ought to settle the question, for they have reached a different conclusion from that contended for by appellant's counsel. If counsel are on a plane that raises them above the level of ordinary men, the fact that they have reached a different conclusion cannot set at naught the conclusion of the ordinary men who composed the jury. The conclusion of ordinary men is the criterion by which the question must be determined, and, if they are not ordinary men, their conclusion is worthless. If they are, their conclusion, being different from that of the jury, demonstrates that the question was one of fact for the jury, and not of law for the court, to determine. This presupposes there was evidence upon the issue; for there can be no trial of an issue of fact, or conclusion upon it, without evidence. That there was evidence is manifested by the voluminous recitation in appellant's brief of the testimony. It raises more than a suspicion of negligence, else it would not be admitted by appellant that a presumption of negligence was created from proof of the existence of the defect in the track which caused the wreck. This of itself required the submission of the case to the jury; for the rule is that, whenever a party introduces sufficient evidence to support a verdict in his favor, he is entitled to a submission of the case to the jury, no matter how strong the contradictory evidence may be. Eastham v. Hunter (Tex. Sup.) 86 S. W. 324; T. & P. Ry. Co. v. Bump (Tex Civ. App.) 95 S. W. 29.

But, waiving for the present such admission of appellant's counsel, we will state the issuable grounds of negligence alleged and to some extent the evidence bearing upon each of them; and then, viewing it in the light most favorable to appellee, determine whether the court erred in refusing the requested peremptory instruction. Among other things, the appellee's petition charged that defendant's track was defective; that the defendant failed to use the proper care to discover the defect; that it negligently ran its train upon the defective track, without using proper precaution to ascertain its condition, at an excessive rate of speed; and that these acts of negligence produced the derailment and plaintiff's injuries. As is said before, the appellee was the fireman of an engine on one of appellant's trains, and was injured by its derailment, which was caused by a washout, or the giving way of the roadbed by reason of heavy rainfalls. This was, of course, a defect in the track rendering it unsafe for the operation of trains. The question, then, is: Was the defect caused by appellant's negligence? As there can be no negligence unless there is a failure of duty, it is essential to the decision of the question to determine the duty appellant owed the appellee, and whether it was discharged. That a railway company owes to its employés operating its engines and trains over its road the duty to exercise ordinary care to so construct and maintain its roadbed as to make it a reasonably safe place for such servants to do their work, and that its failure in such duty to its employés is negligence, are matters of law too well settled to admit of question. If, then, there was evidence tending to show a breach of this duty, it is equally clear that a question of fact was presented for the determination of the jury.

The evidence shows that the train was running on a bank or dump about 12 feet high. The ground upon which it was built was much lower on the north side of the track than on the south side, which was caused from continual filling on the south from the wash from an adjoining farm; otherwise, the ground is much higher on that side. There was no culvert under the track through which storm water, flowing from the hillside south of the track, could be carried off. This may account for the alluvium which raised the ground much higher on that side of the track than it was on the other. It was a complete washout, from 6 to 14 feet long and 8 to 12 feet deep, and a heavy stream was running through it. The earth was washed out underneath the dump. "Apparently" says a witness, "the water that ran through the washout came from the farm on the south side of the track, and a great deal came down the right of way from the east. * * * To the best of my knowledge it seemed to me there was pretty much of a body of quicksand in there somewhere, the way it had washed out, from the amount on the side. I don't know where it came from. Can't say whether the quicksand came out of the dump or not. It looked that way. The ground was thoroughly water-soaked, very wet." While the evidence shows that the rain which caused the washout was a heavy one it was not unprecedented. Though the road had been constructed over 20 years prior to that time, no washout had ever occurred there before. If conditions had remained unchanged from the time of its original construction, this would be regarded as cogent evidence that there was no negligence in its original construction. But conditions are not shown to have remained what they were. The topography of the land adjacent to the track, from the way it was constructed, had changed by accretions of alluvia washed from the hillside against...